Dismissal of appeal against conviction for narcotics and weapons offences as well as forgery of documents

Facts

The appellant was convicted by the District Court of Dietikon on 19 January 2023 of multiple offences under the Narcotics Act (Art. 19 para. 1 lit. a and d NarcA), multiple offences under the Weapons Act (Art. 33 para. 1 lit. a WA in conjunction with Art. 5 para. 2 lit. a WA in conjunction with Art. 7 para. 1 WO as well as Art. 5 para. 2 lit. c WA in conjunction with Art. 42 para. 6 WA) and multiple forgery of documents (Art. 251 SCC). He was also acquitted of the charge of selling an unspecified quantity of marijuana. The court sentenced him to a custodial sentence of 8 months, a fine of 100 daily rates of CHF 130.-- (partially as an additional penalty) and a fine of CHF 2,000.--. The execution of the custodial sentence and the fine was suspended on probation for a period of four years. The probation period of an existing conditional sentence was extended by one year. The ancillary, cost and compensation consequences were regulated.

The appellant appealed against this judgment. The Public Prosecutor’s Office of Limmattal/Albis requested that the lower court’s judgment be upheld.

The Higher Court of the Canton of Zurich ruled with judgment of 16 October 2023 that the judgment of the District Court of Dietikon was partially final and convicted the appellant of an offence under the Narcotics Act (Art. 19 para. 1 lit. a and d NarcA) as well as multiple offences under the Weapons Act (Art. 33 para. 1 lit. a WA in conjunction with Art. 5 para. 2 lit. a WA in conjunction with Art. 4 para. 1 lit. c WA in conjunction with Art. 7 para. 1 WO in conjunction with Art. 5 para. 2 lit. c WA in conjunction with Art. 4 para. 1 lit. e WA in conjunction with Art. 2 WO and Art. 16a WA in conjunction with Art. 15 WA). It sentenced him to a custodial sentence of 8 months, a fine of 100 daily rates of CHF 130.-- (partially as an additional penalty to an existing sentence) and a fine of CHF 600.--. The execution of the custodial sentence and the fine was suspended on probation for a period of four years. The ancillary, cost and compensation consequences were regulated.

The appellant filed an appeal in criminal matters seeking the annulment of the conviction for offences under the Narcotics Act and the Weapons Act as well as a more lenient sentence. He also sought the annulment of the costs order and the return of seized cash. The Attorney General’s Office of the Canton of Zurich opposed the appeal.

Considerations

The Federal Supreme Court examined the appellant’s appeal for violations of the right to be heard (Art. 147 para. 1 CrimPC) and arbitrariness in the determination of the facts. The appellant argued that the police report contained no details of measurement methods and devices, which he claimed violated his right to participate in taking of evidence (Art. 147 para. 1 CrimPC). The Federal Supreme Court clarified, however, that Art. 147 para. 1 CrimPC relates to participation in questioning and not to measurement methods. Moreover, the appellant did not show any concrete indications of a violation of his right to participate. The objection was therefore dismissed as unsubstantiated.

The appellant claimed that the lower court had arbitrarily determined the facts, in particular with regard to the THC content of the seized cannabis plants and the number of harvests. The Federal Supreme Court recalled that the determination of the facts by the lower court can only be overturned in cases of obvious incorrectness or arbitrariness (Art. 97 para. 1 FSCA). It emphasised that a different assessment of the evidence alone is not sufficient to establish arbitrariness. The lower court had concluded from indications such as the cultivation of 362 THC-containing cannabis plants, an increase in electricity consumption during the cultivation phase and the appellant’s confession that he had cultivated THC-potent cannabis and harvested 14 CartA of marijuana. This conclusion was comprehensible and free from arbitrariness. The finding that the seized knives were single-handed weapons was also based on the appellant’s confession and the seizure list. The appellant’s objections were therefore dismissed as…